REPRESENTATIVE CHARACTER OF CONGRESS One last observation I will make: You show great confidence in the representative character of the Congress. A recent poll by Mr. John Kraft indicated that there is a great diversity between the feelings of the majority of the people of this country and the present attitude of the Congress regarding the war. This poll showed that a clear majority of the people favored the ending of the war by the end of this year, which is expressed in the Hatfield-McGovern amendment and yet the Congress takes directly the opposite attitude. Senator STENNIS. Yes. The CHAIRMAN. So it does raise a very serious question as to whether or not in the field of foreign policy, as distinguished from, we will say, the welfare bill or something that is very intimate and close knowledge of the people here, there is a representative character between the Congress and the people. Senator Spong, do you wish to ask any questions? LEGISLATION SHOULD REQUIRE BETTER REPORTING PROCESS BY EXECUTIVE Senator SPONG. I know Senator Stennis is under pressure of time. I would like to say that I was impressed when Senator Stennis spoke in Mississippi several months ago about the need for this type of legislation. He followed it up with the introduction of his resolution. I agree that this is not primarily a legal question. Senator STENNIS. Yes. Senator SPONG. I believe that the public thinks that Congress has participated and been consulted a great deal more concerning foreign and war policies than they have. I would hope that whatever legisla tion is enacted would in some way assure or require a much better reporting process on the part of the Executive. Just one thing about your first question, Mr. Chairman. Senator STENNIS. Excuse me. I heartily agree with that. I think on this nuclear threat any President would consult extensively with the Congress as they have in the past. WHETHER TO MAKE EXPLICIT POWER REGARDING IMMINENT NUCLEAR ATTACK Senator SPONG. Senator Fulbright asked you specifically about section 2, paragraph (3) of your bill where it is explicit with regard to imminent nuclear attack. Senator STENNIS. Yes. Senator SPONG. In talking with Senator Eagleton when he testified here, I questioned whether that power is not implicit in the resolution he introduced. I believe it is implicit also in the one Senator Taft introduced. I think the problem for the committee is going to be whether or not to consider spelling this power out. I appreciate your testimony here this morning. Senator STENNIS. Yes. Senator SPONG. Thank you very much. Senator STENNIS. Thank you very much. The CHAIRMAN. Senator Javits? Senator JAVITS. Thank you very much, Mr. Chairman. HISTORIC IMPORTANCE OF WAR POWERS LEGISLATION First, Senator Stennis, may I say that personally I regard this as the most important legislative initiative I have ever taken. I think it is that important to the history of our country, and I cannot tell you how gratified I am that Senator Spong has taken the interest in it that he has in joining me, and you have, as chairman of the Armed Services Committee, recognized its historic importance. Beyond that, any differences between us are really insignificant in my judgment. The family of bills which have now been introduced essentially adopt the framework which was laid out in the bill I first introduced on June 15, 1970, and reintroduced on February 10, 1971. Upon that we agree the 30-day framework, the emergency authority given the President in specific circumstances, the reporting requirement, and the expediting action by the Congress and, especially, the statutory assertion of the constitutional powers of Congress in article 1. POINTS OF DIFFERENCE BETWEEN S.J. RES. 95 AND NEW DRAFT BILL There are three points of differences between your bill and the new draft bill which Senator Eagleton has joined me in sponsoring. You have a copy of this redraft. I would like to have your comments for the record. You have already told me you would not be in a position to do it this morning because of your other duties, but I would greatly appreciate it if you would review carefully what Senator Eagleton and I have agreed on and let us have your views. It will be most valuable for the committee as we mark up a bill (See pp. 763-765.) Senator STENNIS. I certainly will do it, Senator, and if you give me those questions this weekend, I would like to do it for you. Under the circumstances, though, now, I feel almost absolutely compelled to ask you to excuse me because Mansfield has called me. Senator JAVITS. May I just make one point, Senator Stennis? One, the nuclear question has already been raised by the chairman. Your resolution speaks of a declaration of war as being one of the statutory authorities by which we could enable the President to proceed after 30 days. Your testimony puts emphasis on the declaration of war. I would hope you would review that again in the light of not highlighting what is the real deficiency in the present situation, to wit: that we don't want to be forced into a declaration of war. History has shown that the real problem lies in the undeclared war situationthe grey area, short of all-out war. We need more than a stark, "either/or" choice. Senator STENNIS. Yes. Senator JAVITS. Finally, your exclusion clause pinpoints everything in Indochina. Our bill excludes hostilities in being at the time of enactment. One is a geographic approach, the other is a "time" approach. Senator STENNIS. Yes. Senator JAVITS. I would hope you would give us your views on the practicalities of alternative approaches. Other than that, I think we have accommodated all the key additions that you have raised in your bill. Senator STENNIS. Well, we will just have to exclude Indochina to find a starting place for legislation; we will just have to let the past be the past. WHEN LEGISLATIVE ACTION SHOULD BE TAKEN Senator JAVITS. Senator Stennis, before leaving will you answer for the record one additional, important question? Your remark of May 11, in which you said this thing ought to be considered, "I do not mean passed within a week or a month. I think this matter should be pending for a year or more," has been used by Secretary Rogers in his testimony here to ask us to postpone action "until after passions of Vietnam have faded into the past. 99 Now, would you say that your definition was different from his, and would you be satisfied if, let us say, we acted at the end of this year or early next year? Senator STENNIS. Oh, yes; certainly. Senator JAVITS. I thank you. Senator STENNIS. I just didn't want precipitously to go into it; I' thought it would fail to pass. Senator JAVITS. Thank you. The CHAIRMAN. Senator Cooper? Senator COOPER. I will just take a few moments. CONSTITUTIONAL POWER OF PRESIDENT AND CONSTITUTIONAL PROCESS Senator COOPER. First, I think you made this point very clear that, the constitutional powers of the President not requiring the authority of the Congress are to repel an actual attack or to act against imminent danger of attack, imminent danger. I think that is very important because without the word "imminent" Senator STENNIS. Yes. Senator COOPER (continuing). Without the word "imminent" the President could find that almost any situation which might lead to an attack. Senator STENNIS. Yes. Senator COOPER. Second, I think you would agree now and have always agreed that "constitutional process" when there is no attack or if there is not an imminent attack means that the President must come to the Congress for authority? Senator STENNIS. Absolutely, yes; and he will be a large part in the decision and should be. Senator COOPER. I just make one other comment: In this committee at the time they were considering the SEATO Treaty that same question I have asked you was asked Secretary Dulles. Senator STENNIS. Yes. Senator COOPER. And Secretary Dulles replied that, first, it would be a matter of national policy and, second, constitutional process meant coming to the Congress. QUESTION RAISED BY WITNESS DURING DEBATE ON KOREAN TREATY I make one further point that during the debate on the Korean Treaty, Senator Stennis raised on the Senate floor the question of what constitutional process means and he argued very strongly thereThe CHAIRMAN. Who did? Senator COOPER. Senator Stennis on the Senate floor during the debate on the Korean Treaty-questioned the then chairman of the committee, Senator Wiley, very strongly about what constitutional process means. Senator Stennis, you argued that it meant, absent from this question of imminent attack or immediate attack, the President had to come to the Congress for authority. You were a forerunner of this. Senator STENNIS. For a declaration of war, yes, come to the Congress for a declaration of war. Senator COOPER. Yes, I ask unanimous consent to place a speech I made on the floor of the Senate on December 8, 1970, which places that colloquy in the perspective of the present consideration of the warmaking powers in the record at this point. You were looking far ahead. (The information referred to follows:) STATEMENT OF SENATOR COOPER [From the Congressional Record, Dec. 8, 1970] Mr. COOPER. Mr. President (Mr. Spong), I do not intend to repeat the arguments made many times in the early part in the Cooper-Church-Mansfield-Aiken amendment. It was said at the time that the amendment we offered was an unusual amendment and without precedent. In my statement I have noted the many reasons, on which this question has been raised and considered by the Senate in previous years. In 1954, the debates show, on the question of the Korean security treaty, a colloquy between the distinguished Senator from Mississippi and then chairman of the Committee on Foreign Relations. Mr. Wiley, and myself, in which the Senator from Mississippi raised this question of the "constitutional process" provided in that treaty, as necessary to implement the treaty-to provide for the argument of the United States in war. Since that time, the Senate has looked into the question and the Foreign Relations Committee, under Senator Fulbright, examined them rigorously. The subcommittee under the Senator from Missouri (Mr. Symington), reviewing U.S. commitments, in action last year taken on the national commitments resolution, approved by the Senate, the approval of an amendment which I offered to the defense authorization bill, which was stricken in conference; later, the amendment which Senator Mansfield and I offered to the defense appropriation bill, which was modified by the effective work of Senator Church -and that is the beginning of our work together on later amendments-and the Senator from New York (Mr. Javits), the Senator from Colorado (Mr. Allott), the Senator from Michigan (Mr. Griffin), and others, a limitation upon the use of troops in Laos and Thailand was accepted by Congress and by the administration. The action which has been taken by the Committee on Appropriations follows a long line of precedents. I appreciate very much, and I know my colleagues do, the action of the Ap propriations Committee. Mr. President, over the past 2 years the Senate has rigorously examined the constitutional framework of policymaking for foreign affairs and national security matters. A very important application of the responsibilities of the Senate in these areas was the debate over Cambodia. A decisive statement of the majority view of the Senate is found in the pending bill, the Department of Defense appropriations bill, 1971. Section 843 provides: "SEC. 843. In line with the expressed intention of the President of the United States, none of the funds appropriated by this Act shall be used to finance the introduction of American ground combat troops into Laos, Thailand, or Cambodia." The committee report states that the committee's recommendation for the inclusion of Cambodia in section 843 of the bill is based upon the earlier action of the Senate with respect to the defense authorization bill on December 15, 1969, and the Cooper-Church amendment to the foreign military sales bill, H.R. 15628, was adopted by the Senate, 58 to 37. This clear affirmative action by the Appropriations Committee marks another important step in the effort by the Senate to fulfill its constitutional responsibilities in the joint making of foreign policy, particularly with respect to engage ment in war over a period of years certainly since 1954. The primary purpose of the Cooper-Church amendment was to assert the view of the Senate that the United States should not become involved in a new war in Cambodia, a country to which it has no commitments, without the expressed approval of the Congress. Underlying their purpose is an attempt to resolve the continuing and contentious problem of whether a decision to enter into a war should be made by the President alone or by the President and the Congress, and whether the involvement of the United States in a war is necessary for the Security of the United States and its people. These are issues which have troubled the Congress and the people during the life of the Republic, but more particularly since World War II. The Constitution provides that the Congress has the authority to declare war, to make rules and regulations for the Armed Forces and to raise and support armies and a Navy, to suppress insurrection and repel invasion. The Constitution provides that the President shall be Commander in Chief of the Army and the Navy of the United States and the militia when called into service of the United States. While the notes of members of the Constitutional Convention distinguished the power of the President from that of the King of England who had the power to declare war and to raise armies and to make war, the exact and distinctive war powers of the President and the Congress have never been determined. There has never been any doubt, nor is there now, in the event of suddet attack upon the territory of the United States or upon U.S. forces, the President has the authority and duty to repel attack. But since World War II, the way in which the Government of the United States-the Congress and the Executive decide upon whether war is necessary for our security, has been continually at issue. On January 26 of 1954 in the debate on the Korean security treaty, the distinguished chairman of the Armed Services Committee, Mr. Stennis, and I, engaged in a colloquy with the then chairman of the Foreign Relations Committee, Senator Wiley of Wisconsin. The issue was over the meaning of "constitutional processes" and I am going to place in the Record at the conclusion of my remarks the full colloquy-a colloquy which I believe throws much light on the issue that has been so heatedly debated over the past 2 years. At this point I would like to quote the following portion. Senator Stennis is questioning Senator Wiley then chairman of the Foreign Relations Committee about the meaning of "constitu tional processes": "Senator STENNIS. If the language does not mean the President can act without the action of the Congress, then what does it mean and why include such Language? "Mr. WILEY. To put it in a little different way, let me say the language simply means that if there is an overt attack by an aggressor upon one of our allies, the United States will simply take whatever action is determined by the President and the Congress to be advisable under the circumstances, having in mind the obligations of this Treaty, if it is ratified. "Mr. STENNIS. The Senator says, 'the President and the Congress.' He means does he not, that the language did require affirmative action by Congress before the United States could enter into armed conflict or into a war?" A few moments later in the debate, Senator Stennis, seeking further clarifi cation of the war-making powers of the President and the Congress, said as follows: "Mr. STENNIS. Of course, we protect our troops wherever they may be. However, apart from that, does the Senator from Wisconsin agree that before we would |